Children: Innocent until proven guilty? A briefing on the overuse of ...

<strong>Children</strong>: <strong>Innocent</strong> <strong>until</strong> <strong>proven</strong> <strong>guilty</strong>?A <strong>briefing</strong> on the overuse of remand for children inEngland and Wales and how it can be addressedPenelope Gibbs & Simon HicksonKey Facts• Three quarters of under-18 year olds locked up on remand bymagistrates or district judges are either acquitted or given acommunity sentence• One fifth of children in custody in England and Wales are lockedup on remand – approximately 600 at any one time• The number of children imprisoned on remand has increased by41% since 2000• 95% of those remanded in custody have pleaded innocent and areawaiting trial, 5% are awaiting sentence• Use of the important alternative to custodial remand – remand tonon-secure local authority accommodation (RLAA) – has declinedby 43% in the last four years• In most areas of England and Wales there is no specialistaccommodation for under-18 year olds on bail or remand tonon-secure local authority accommodation• 29% of boys and 44% of girls in young offender institutions (YOIs)have previously been ‘looked after’ by their local authority• If a child is detained overnight by the police, the youth offendingteam (YOT) and defence representative often only have a couple ofhours to develop a relationship with, and assess, the child, prepare abail package and present this to the court• In the year 2008/9, 844 children were locked up on remand for aweek or less.

<strong>Children</strong>: <strong>Innocent</strong> <strong>until</strong> <strong>proven</strong> <strong>guilty</strong>?3Something is going very wrong when so many children are locked up onremand, but deemed safe enough to be released into the community ifconvicted and sentenced. Since September 2007, the Prison Reform Trust(PRT), supported by the Diana, Princess of Wales Memorial Fund, has beenworking to reduce the number of children and young people imprisonedin England and Wales. In June 2008, PRT published a twelve point plan forreducing the child custody population of England and Wales. 4 Point oneof that plan was to reduce the number of children remanded in custody.Since then we have examined why so many children are being locked upon remand and how the tide could be reversed. It’s not an easy processbecause so many agencies are involved – police, defence solicitors, courts,social workers, housing officers and youth offending team (YOT) workers– as well as the children themselves and their families. But reducing childcustodial remands would save many children from unnecessary andharmful effects of imprisonment and allow the government to redistributefunds towards meeting the welfare and housing needs of these vulnerablechildren.We have gathered information from a number of sources: interviews withsenior practitioners and sentencers, a literature review of research andstatistics, a survey of bail and remand officers, in-depth interviews with across section of the latter and a national seminar on this subject. As wehave gathered information, we have sought to analyse the processes whichcontribute to remand decisions. In this report we present the problem –the rise in child custodial remands; we assess why the problem has arisen;and we present a series of policy and practise solutions. There are manyways of reducing child custodial remands, but the main approaches can besummarised in twelve points, which we will expand in the full report.4 Criminal Damage: why we should lock up fewer children. Prison Reform Trust 2008

4 <strong>Children</strong>: <strong>Innocent</strong> <strong>until</strong> <strong>proven</strong> <strong>guilty</strong>?12 point action plan1 Change bail law so that the legal criteria forrefusing bail to children are stricterThese criteria should be significantly different tothose used for adults and address childcharacteristics and vulnerability. The Bail Act1976 sets the criteria for refusing bail and mostcriteria are the same for adults and children. Noaccount is taken of children’s greatervulnerability, lesser maturity or their welfareneeds. A major reform of bail for children isneeded so that it is no longer possible torefuse bail to children who have been accusedof a non-violent offence and who do not posea clear threat of committing a violent offencewhile on bail.Action by: Ministry of Justice (MoJ)/Department for<strong>Children</strong> Schools and Families (DCSF)2 Change legislation so 17 year olds are treatedcomparably to other children, in particular withaccess to suitable community remandaccommodation and to emergencyaccommodation in place of police detention.Legislation affecting child remands discriminatesagainst 17 year olds. If the police detain a 17year old overnight, they have no legal access toemergency accommodation in the community,unlike those aged 16 and under. If refused bail,17 year olds are treated the same as adults bybeing automatically remanded to custody. Bycontrast a 15 or 16 year old has a chance ofbeing remanded to local authorityaccommodation.3 Address justice by geographyThere are huge differences in the use of remandfrom area to area. In 2006/7, 15% of those fromLambeth awaiting trial or sentence were lockedup, whereas in Ceredigion 1% were. The level ofserious crime in an area explains some of thedifference, but far from all - even similar areas’rates vary widely. The government and theYouth Justice Board (YJB) should focus on areaswith particularly high remand rates, analysing thedrivers to high remand and the proportion ofcustodially remanded children who are acquittedor get a community sentence. The YJB, CrownProsecution Service, the Judicial Studies Boardand HM Courts Service should offer supportand training to youth offending team (YOT)practitioners, prosecutors and magistrates inthose areas.Action by: MoJ/DCSF, Youth Justice Board (YJB),Crown Prosecution Service, sentencers, JudicialStudies Board, Her Majesty’s Courts ServiceProportion of childrenawaiting trial/sentence receiving acustodial remand across a group ofcomparable youth offending teams 2006/714121089.19.211.211.8This difference in the treatment of 17 year oldscontravenes the UN Convention on the Rightsof the Child and contributes to adisproportionate number of 17 year olds beinglocked up on remand - 17 year olds get half ofall custodial remands given to children thoughthey make up less than a third of those onremand (awaiting trial or sentence).6421.82.83.44.65.76Action by: MoJ/DCSF0SOUTH TYNESIDESUNDERLANDBLACKBURN WITH DARWENOLDHAMGREENWICHTAMESIDEWALTHAM FORESTNEWHAMBARKING & DAGENHAMHULLCUSTODIAL REMAND RATE AS %Source: YJB

6 <strong>Children</strong>: <strong>Innocent</strong> <strong>until</strong> <strong>proven</strong> <strong>guilty</strong>?- The CPS and defence may have little youthcourt experience- The child may live in a different area to that ofthe court. Even on a weekday it may be difficultto contact their ‘home’ YOT. On a Saturday thisis doubly difficult.YOT officers we polled said Saturday courtswere one of the key drivers to custodialremands, for all the above reasons. In order toreduce the discrimination suffered by those whoappear in a Saturday court, the police should beencouraged to detain as few young people aspossible, and the information available toSaturday courts improved.Action by: the police, YOTs, HMCS, sentencers8 Improve the training of magistrates, district judgesand defence practitionersA youth court magistrate gets just a couple ofhours’ training in child remand law and notraining in the UN Convention on the Rightsof the Child. A magistrate who sits in the adultcourt may have had no specific training in youthlegislation, but still have to make a bail decisionabout a child.It should be mandatory for all sentencers tobe trained in detail about the range of childbail support and RLAA options, and for youthcourt magistrates to learn how the <strong>Children</strong>Act 1989 can be used to get local authoritiesto provide suitable housing for young people.Magistrates and district judges also need moretraining in assessing risk, particularly in the caseof children who have breached bail conditionsor re-offended while on bail. If three quarters ofyoung people who get custodial remands in themagistrates’ court do not get custodialsentences, the initial assessment of the risk theyposed in the community must frequently beinaccurate.Action by: Judicial Studies Board, sentencers<strong>Children</strong> are frequently represented by solicitorsor junior barristers who have little experience ofworking with vulnerable children and/or ofdefending in the youth court. <strong>Children</strong> at risk ofbeing locked up on remand need to bedefended by experienced practitioners whounderstand both youth justice and childcare law,and can competently oppose an inappropriateproposal for refusing bail. All solicitors andbarristers who defend children need enhancedtraining in the relevant law. As with the familycourts, there should be a panel of solicitors whospecialise in youth court matters or solicitor’sfirms should be accredited for child defencework.Action by: MoJ/DCSF, Legal Services Commission,the Law Society9 Improve the system for defendants with mentalhealth problems, learning disabilities or learningdifficulties<strong>Children</strong> who have mental health problems,learning disabilities or difficulties often find ithard to understand and cope with thecriminal justice system. A comprehensive systemfor screening children for such needs at thepolice station and at court needs to bedeveloped.Clear guidance should be issued on how to dealwith those with mental health problems, learningdisabilities or difficulties at charge, remandconsideration and trial stage. Bail packages needto be adapted to accommodate children withthese needs. Clarification on diversion fromthe criminal justice system for such children isurgently required; the use of custodial remand isinappropriate.Action by: MoJ/DCSF, Department of Health, YJB,JCB, Sentencing Guidelines Council, YOTs, the police10 Engage parents better in the court and bailprocessThe support of parents is an important factor inreassuring the court that a child on bail will bewell supervised. A supportive parent in courtcan be pivotal in preventing a custodial remand.But legislation mandating the appearance ofparents in court is not enforced and anecdotalevidence suggests many children are notaccompanied by their parents.Punitive approaches will not improve thesituation, but youth offending teams andpolice must make strenuous efforts on the dayof charge to contact parents (or failing thema wider family member), and persuade themof the importance of attending court. Wherethere is a risk of custodial remand, courts shouldadjourn remand decisions to allow more time

<strong>Children</strong>: <strong>Innocent</strong> <strong>until</strong> <strong>proven</strong> <strong>guilty</strong>?7for parents to be contacted and persuaded toattend court.CONCLUSIONAction by: YOTs, the police, the courts11 Reduce the disproportionate number of blackchildren locked up on remandBlack under-18 year olds are far more likely toreceive a custodial remand than their white orAsian peers. There is very little research on whythis is, but is likely to be related to social andcultural factors. The propensity of courts to usecustodial remand in the case of foreign nationalchildren with no known address may alsocontribute to the numbers.The drivers to high custodial remand for blackchildren need to be identified in research andappropriate steps taken to preventdiscriminatory practice. YOT areas where thereare a disproportionate number of black childrenon remand should consider commissioningculturally-based bail support packages usingcommunity workers, mentors and mental healthworkers with a good understanding of localblack communities. For minority ethnic childrenfor whom English is not their first language,translation services should be made readilyavailable.Action by: Youth Justice Board, YOTs, MoJ/DCSF12 Improve bail supervisionOur survey of youth offending team officersrevealed that offending while on bail andbreaching bail conditions are key drivers tocustodial remands. Steps must be taken toensure that, when bail conditions are set,children are not being set up to fail. Youngchildren, and those with family and/or healthproblems, may find it very difficult to complywith stringent bail conditions. Courts need toset bail conditions which suit the individual child.The present bail ‘menu of options’ is insufficientlyflexible and needs to be revised.Other measures need to be taken to reduceoffending while on bail. <strong>Children</strong> living in bed &breakfast or hostel accommodation, who are notin education or training, are particularly liable tore-offend while on bail. Such children needbetter supervision during the day and in theevening.The number of children locked up on remandhas increased much more than the numbersentenced to custody but this increase has hadlittle public or media scrutiny. It is almost as ifremand has been put in the too difficult box, tobe left to practitioners to deal with.The lack of governmental focus is reflected inrecent publications. The only mention ofremand in the Youth Crime Action Plan is areference to the financing of court-orderedsecure remands. The Criminal Justice andImmigration Act 2008 only reference to bail is achange in the circumstances in whichelectronic monitoring (tagging) can be imposedand an allowance for time spent tagged whendeciding a custodial sentence. The governmenthas made no progress on removing the legaldiscrimination facing 17 year olds despitecommitting to do this five years ago. There hasbeen no major government sponsored researchon child remands and some crucial data isuncollected or not in the public domain.Despite difficulties in finding some information,the Prison Reform Trust has identified the maindrivers for the high rate of child custodialremands and suggested many ways in which wecould avoid children being locked up on remand.Various practical changes could reduceunnecessary use of custodial remands – bettertraining and guidance for custody sergeants,better YOT representation in Saturday courts,more remand fostering places – but ultimatelythe greatest difference would be made by achange in primary legislation. While the criteriafor the refusal of bail remain broadly the samefor children as adults, courts will always havewide discretion to lock children up on remand.And new legislation over the last ten years hasgiven courts greater discretion to imprisonchildren on remand. Now is the time for thegovernment to review bail law and practise andensure that thousands of children everyyear do not continue to be imprisonedunnecessarily.Action by: MoJ/DCSF, YJB, YOTs, local authorities

<strong>Children</strong>: <strong>Innocent</strong> <strong>until</strong> <strong>proven</strong> <strong>guilty</strong>?The Prison Reform Trust aims to create a just,humane and effective penal system. We do thisby inquiring into the workings of the system; byinforming prisoners, staff and the wider public;and by influencing parliament, government andofficials towards reform.www.prisonreformtrust.org.uk8The Diana, Princess of Wales Memorial Fundcontinues the Princess’ humanitarian work in theUK and overseas. By giving grants toorganisations, championing charitable causes,advocacy, campaigning and awareness raising, theFund works to secure sustainable improvementsin the lives of the most vulnerable people in theUK and around the world.www.theworkcontinues.orgThis <strong>briefing</strong> was written by Penelope Gibbs andSimon HicksonCopyright Prison Reform Trust 2009To download the full report visitwww.prisonreformtrust.org.ukFor further information contactPenelope Gibbs15 Northburgh StreetLondon EC1V 0JRpenelope.gibbs@prisonreformtrust.org.ukTel: 020 7689 7742